The applicant's case

10. The notice of appeal took the form of a skeleton argument of 191 paragraphs, settled by Mr Davies. Mr Davies invites the Court to approach the application on the basis of the statement of Baggallay JA in Glannibanta (1876) 1 PD 283 at 287:

"Now we feel ... the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are ... material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect."

11. Mr Davies submits that the five expert witnesses called at the trial on behalf of the respondents were all motivated by ideological bias and, particularly in the case of the historian Professor Evans, by personal hatred. Professor Evans denied that allegation stating that he did not have personal feelings about the applicant and had tried to be as objective as possible. The attack on Professor Evans, whom Mr Davies described as the key witness for the respondents, has been continued at this hearing, his analysis of one aspect of his evidence being described as "ridiculous". It is also submitted that Professor Evans should not have been allowed to give evidence as to the meaning of the words "holocaust denier" and also that Professor van Pelt should not have been permitted to give evidence on architectural, as distinct from historical, matters and should not have been permitted to give evidence on the chemistry of fumigation and gas chambers. The fees paid to the experts were "so grotesquely large", it is submitted, that their evidence could not be "the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation" (Cresswell J in The Ikarian Reefer [1993] 2 Lloyd's Rep 68 at 81.

12. Mr Davies rightly stresses that all the individual points at issue should be considered against the background that the respondents have to establish not merely that the weight of historical evidence is against the views expressed about events by the applicant but that, on the evidence available at the time the view was expressed, the view was wholly unreasonable and not one which could honestly be held. Only if no rational historian with a general knowledge of the Third Reich could have come to the conclusions reached by the applicant at the material time were the allegations against him justified.

13. It is submitted that while the applicant may have at times shown rather poor judgment, the position he took on issues was one of several, or a range of, positions which could honestly be taken on the existing evidence. It was important to keep in mind the information available at the time the relevant books were written, which was before much of the present evidence had become available. We acknowledge that it is of the essence of the investigation of historical events, particularly comparatively recent events, that fresh material becomes available from time to time. It may throw doubt on previously held views or may tend to confirm them. The reputable historian who continues to express views will have regard to the fresh material when doing so.

14. Counsel submits that provided there was evidence which entitled the applicant to reach the conclusion which he expressed on an issue, he could not be condemned in the manner the respondents have condemned him. An historian who writes books for publication must inevitably be selective in the material included, it is submitted. Where the applicant retained his doubts about events in the Third Reich, the evidence was not so overwhelming that he could not honestly persist in his doubts. The question is whether the applicant could honestly come to the conclusions he did. Mere negligence on his part was insufficient to justify the allegations made against him, Counsel submits.

15. Mr Davies relies on admissions made by the applicant as to events which occurred in the Third Reich to demonstrate the applicant's objectivity. He has never denied that the Nazis and their collaborators murdered millions of Jews. It is submitted that he has never tried to justify that conduct of theirs. He accepts that at some time after June 1941 a policy of murdering all Jews in occupied Europe had become State policy "at Himmler's level". By 1943, and quite possibly earlier, that was a systematic policy.

16. Counsel also mentioned a concession made by the applicant when cross-examining Dr Longerich upon the possibility of Himmler conducting operations behind Hitler's back. The applicant volunteered the information that Himmler's brother had told him "that Heinreich was such a coward that he would never have done this without Hitler's orders".

17. Reference is also made to the applicant modifying his views when fresh evidence has become available, for example in relation to the Leuchter Report, and in relation to casualties resulting from the bombing of Dresden. The applicant has also habitually disclosed to other historians documents which he had discovered (5.12). In some respects, those who had taken views different from the applicant's had had to revise them. For example, it was until 1990 recorded on a plaque at Auschwitz that 4 million people had died there whereas the current estimate is very much lower, a change in the direction of the views held by the applicant.

18. Mr Davies urges the Court to bear in mind that the applicant appeared in person at a long and complex trial and allowance should be made for any failure in his understanding of procedure and in his presentation. The further general point is made that the weight to be placed on statements made by the applicant in speeches and interviews, and relied on by the respondents to justify their allegations, should be very limited. He had spoken without notes and in stressful situations. He should be judged as an historian and not as a platform speaker.

19. Counsel relies on the favourable comments of the judge (13.7) under the heading "Irving the Historian". The paragraph begins with the sentences:

"My assessment is that as a military historian, Irving has much to commend him. For his works of military history Irving has undertaken thorough and painstaking research into the archives. He has discovered and disclosed to historians and others many documents which, but for his efforts, might have remained unnoticed for years".

That assessment is now unchallenged. We also agree with the judge that the applicant's knowledge of World War II, his mastery of detail, along with his ability and intelligence are not in doubt.